The deadline is approaching for marine and coastal area applications to be submitted to the Crown and/or the High Court. Under the Marine and Coastal Area (Takutai Moana) Act 2011, iwi, hapu or whanau can apply to have their customary rights and/or title to a specific marine and coastal area recognised – but applications must be in by 3 April 2017.

What is the Marine and Coastal Area?

Rights obtained through the application process will only apply to the common marine and coastal area (CMCA). The CMCA is the portion of the coast and waters between the mean high water springs line and the outer limits of the territorial sea (12 nautical miles from shore). This zone includes the air space above the land and the subsoil and bedrock below. It excludes existing privately owned land and certain conservation areas.

What rights can be given under the Marine and Coastal Area Act?

There are two broad categories of rights that can be obtained: (a) customary marine title and (b) protected customary rights.

Customary marine title is a specialised property right that recognises the relationship between iwi, hapu or whanau and the CMCA. Customary marine title gives iwi, hapu or whanau the right to say yes or no to proposed activities that need resource consent or permits within the customary marine area (with some exceptions). Furthermore, customary marine title gives the group rights in relation to marine mammal watching, coastal policies, minerals in the area and protection of wahi tapu.

Customary marine title cannot be sold or converted to freehold title, nor does it exempt the group from the need to obtain permits and resource consents for that area.

Test for customary marine title

In order to have a successful application for customary marine title, the applicant group must prove that they have used and occupied the specified area without substantial interruption from 1840 until the present, or from the time of customary transfer until the present. The applicant group must also prove that the specified area is held in accordance with tikanga.

Protected customary rights are designed to recognise and allow customary activities, such as collecting hangi stones or launching waka, in the CMCA. Iwi, hapu or whanau with a protected customary right will be able to carry out that protected activity without resource consent. Furthermore, any resource consent applications by others will be declined if the proposed activity would have a more than minor adverse effect on the protected activity (unless the protected group agrees to allow the proposed activity). Protected customary rights cannot be granted for certain activities, such as commercial fishing.

Any rights granted under the Marine and Coastal Area Act will not affect the public right of access to the common marine and coastal area. People will still have free access to the area and will be able to use the space recreationally. Existing recreational fishing rights, navigation rights and other uses of the common marine area will remain alongside any new rights under the Act. The Crown will still own any petroleum, gold, silver and uranium within the common marine area.

Test for customary protected rights

To successfully obtain customary protected rights, the applicant group must prove that they have exercised the right in accordance with tikanga from 1840 until present. Additionally, the applicant group must prove that they continue to exercise the right in accordance with tikanga.

How to apply

Applications can be made to the High Court and/or the Crown. Funding is available for both avenues, but will not be given if applications are made to the High Court and for Crown engagement at the same time.

In the High Court, the group must pay $540 to file an application and then Court will decide whether to hear the case. If the Court agrees, there will be a hearing to decide whether the tests are met.

To engage with the Crown, the group must first fill out and submit an application form (https://www.justice.govt.nz/maori-land-treaty/marine-and-coastal-area/apply-for-recognition-of-customary-interests/apply-to-engage-directly-with-the-crown/) and have the Minister agree to engage. If the Minister decides to engage, then an offer of funding will be made by the Marine and Coastal Area team at the Office of Treaty Settlements. The applicants will then work with the Marine and Coastal Area team to determine whether the tests are met and what further research, if any, is needed to establish the claim.

In any case, applications must be submitted by 3 April 2017 in order to begin the process of getting customary rights to the CMCA recognised.

Please contact our Maori Legal team for assistance – Dr Bryan Gilling, email bryan.gilling@morrisonkent.com, phone (04) 495 8930